Confronting Failures of Justice

Paul Robinson is one of the world’s leading criminal law scholars. A prolific writer and lecturer, Robinson has published 20 books and articles in virtually all of the top law reviews, lectured in more than 110 cities in 34 states and 27 countries, and had his writings appear in 15 languages.

He is a former federal prosecutor and counsel for the US Senate Subcommittee on Criminal Laws and Procedures. He is the author or editor of 19 books, including the standard lawyer’s reference on criminal law defenses, three Oxford monographs on criminal law theory, a highly regarded criminal law treatise, and an innovative case studies course book. He has authored more than a hundred scholarly articles that have appeared in essentially every major law review and his work has been published in 15 languages.

A member of the American Law Institute, Robinson is the lead editor of Criminal Law Conversations (Oxford), with contributions from more than 100 scholars around the world, and the author of Intuitions of Justice and the Utility of Desert (Oxford); Mapping American Criminal Law (Praeger, also in Chinese); Distributive Principles of Criminal Law (Oxford, also in Spanish and Chinese); and Structure and Function in Criminal Law (Oxford, Clarendon, also in Chinese). Robinson recently completed three criminal code reform projects in the U.S. and two modern Islamic penal codes, including one under the auspices of the U.N. Development Programme. He also writes popular books for general audiences, such as Would You Convict? (NYU), Law Without Justice (Oxford), Crimes That Changed Our World (Rowman & Littlefield), Shadow Vigilantes (Prometheus), and American Criminal Law (Routledge).

Jeffrey Seaman is a researcher and writer on the U.S. criminal justice system and a JD student at the University of Pennsylvania. He is committed to bringing an interdisciplinary approach to the problem of criminal justice reform to make the system more just for all.

Muhammad Sarahne, SJD, LLM, LLB, is an attorney in the Criminal Department of the State Attorneys Office in Israel, representing the state in criminal matters before the Israeli Supreme Court. He previously worked as a prosecutor in the Economic Crime Department and was an assistant to the Israeli Deputy Attorney General (Criminal). He is an adjunct teacher at the Law School of the Hebrew University of Jerusalem and has published a number of articles in American and British law reviews.

Chapter 1: Getting Away with Murder and Rape

Part I: Criminal Liability Rules

Chapter 2: Legal Bars to Prosecution

Chapter 3: Anti-Justice Distributive Principles

Part II: Limitations on Criminal Investigation

Chapter 4: Investigative Errors

Chapter 5: Inadequate Financing

Chapter 6: Legal Limitations on Police Investigation

Chapter 7: Restraints on Use of Technology

Part III: Criminal Justice Adjudication Procedures

Chapter 8: Excluding Reliable and Probative Evidence

Chapter 9: Pretrial Procedures

Chapter 10: Plea Bargaining

Chapter 11: Unchecked Judicial Sentencing Discretion

Chapter 12: Early Release on Parole and Compassionate Release

Chapter 13: Executive Clemency and Pardon

Part IV: Social and Political Influences

Chapter 14: Citizen Non-Cooperation

Chapter 15: Police Non-Intervention

Chapter 16: Anti-Justice Ideological Movements

Chapter 17: Insights, Patterns & Reform Priorities

Appendix: Discussion Issues

Bibliography

Index

About the Authors

Relying on a truly astounding number of case studies, criminological reports, reviews of federal and state laws, and opinion surveys, Confronting Failures of Justice is a mammoth yet incisive documentation of the myriad ways our legal system undermines the goal of ensuring people who commit crimes receive the punishment they deserve. This book’s thoughtful compendium of how to rectify these injustices provides policymakers with a recipe for reform that is both eminently feasible and theoretically robust.

— Christopher Slobogin, Milton Underwood Professor of Law, Vanderbilt University; author of Rehabilitating Criminal Justice: Policing, Adjudication and Sentencing



Confronting Failures of Justice is quite simply a tour de force. The writing is compelling, and the subject is urgent. It offers a model of clear thinking about the justice system, carefully assesses where and why justice fails, and presents an important argument about the urgency of doing justice. It is sure to become a classic.

— Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College

This is the most original and fascinating book on criminal law I have read in years. I learned something important on every page. Liberals and conservatives alike should be receptive to these novel ideas about how serious crime might be reduced.

— Douglas N. Husak, Distinguished Professor of Philosophy and Law, Rutgers University; author of The Philosophy of Criminal Law

When a person shouldn’t be punished, or is punished too much, the injustice done is easy to see. Harder to see is the injustice at work when those who should be punished are never found, their crimes never solved. Robinson, Seaman and Sarahne do a great service bringing this invisible injustice to light, identifying its many causes, and offering commonsense proposals for reform. Highly recommended.

— Stephen P. Garvey, A. Robert Noll Professor of Law, Cornell Law School

Criminal-law icon Paul Robinson and his esteemed colleagues have produced a text that flips the threadbare contemporary-academic discussion on its head—asking whether a modern-liberal society that seeks to improve the life and circumstances of all its members must take as seriously its moral obligation of imposing just punishment on wrongdoers as it does avoiding unjust punishment on the innocent. So often modern-intellectual discourse is an echo chamber of rut digging commentary that ignores multitudes of alternative paths. Confronting Failures of Justice systematically explores those other avenues. Kudos for producing such a thoughtful analysis.

— Robert Steinbuch, law professor, University of Arkansas at Little Rock

This comprehensive, exhaustively researched book by Paul Robinson, Jeffrey Seaman, and Muhammad Sarahne probes the issues facing criminal justice today, primarily in the English-speaking world. Highly recommended for everyone committed to a just society.

— George P. Fletcher, Cardozo Professor of Jurisprudence, Columbia University School of Law

Confronting Failures of Justice is comprehensive and thoroughly researched, but wears its erudition lightly, offering a vivid and highly readable account of criminal law’s failings—and possible ways to mitigate or avoid them—that will engage and inform academics and general readers alike. With numerous compelling real-world illustrations, this book surveys a wide range of grave and troubling injustices, yet leavens its tragic tales with hopeful proposals for reform.

— Michael T. Cahill, emeritus president and dean, Brooklyn Law School

Confronting Failures of Justice brilliantly and non-ideologically interweaves criminal law theory, substance and procedure, painstaking investigation of the criminal justice system, massive statistical research, and illustrative case studies to convincingly document the regular, immensely costly failures of the criminal justice system to do justice. It canvasses the causes of such injustice and, equally important, it offers sensible solutions to the problems created at each stage of the system. It is a balanced, magisterial work that is indispensable for those who seek to understand and to improve American criminal justice.

— Stephen J. Morse, Ferdinand Wakeman Hubbell Professor of Law and professor of psychology and law in psychiatry, University of Pennsylvania